A federal judge is moving forward with plans to put Camp Lejeune toxic-water cases on trial, nearly four years after Congress created a pathway for people exposed to contaminated water at the Marine Corps base to sue the federal government.
During hearing last week in federal court in North Carolina, U.S. District Judge Terrence Boyle set two cases for non-jury trials in November. The case involving plaintiff Mousser is scheduled to begin November 9. The Fancher case is set for November 16. Both cases involve claims of kidney cancer, but the science surrounding that cancer is expected to be a central issue at trial.
Justice Department attorneys representing the federal government told Boyle that a large federal study comparing people who lived or worked at Camp Lejeune with an unexposed group at Camp Pendleton did not find a statistically significant increase in kidney-cancer incidence. Adam Bain is a lead defense attorney for the DoJ, representing the federal government in the toxic water litigation. He said, "Now, there have been studies done -- many studies done regarding the people at Camp Lejeune, and their rates of kidney cancer are really no different than the general population."
The study identified 710 cases of kidney and renal-pelvis cancer among the Camp Lejeune group, compared with 721 cases at Camp Pendleton. Researchers calculated a hazard ratio of 1.06 — meaning the estimated rate was about six percent higher at Camp Lejeune. But the study's 95-percent confidence interval ranged from 0.95 to 1.18, meaning the difference was not statistically significant.
The Justice Department is using that research to argue that plaintiffs cannot establish causation simply by showing that they were exposed to contaminated Camp Lejeune water and later developed kidney cancer. Government attorneys told the judge that plaintiffs must present reliable scientific evidence showing that the exposure caused their individual illnesses.
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But the scientific evidence is more complicated than simply saying the kidney-cancer rates are the same. Other federal research has found associations between Camp Lejeune's contaminants and kidney cancer. An Agency for Toxic Substances and Disease Registry (ATSDR) study examining illness among former Marines and civilian employees found that exposure to the chemicals TCE and PCE was associated with an increased risk of kidney cancer. The study also found that kidney-cancer risk increased with greater exposure. And the ATSDR also found in a mortality study that there is an estimated 21-percent higher hazard of dying from kidney cancer among Camp Lejeune personnel compared with the Camp Pendleton group. But that result also was not statistically significant, with a 95-percent confidence interval ranging from 0.95 to 1.54.
So, the scientific dispute heading into the trials is not simply whether kidney cancer occurs at Camp Lejeune. It is whether the available scientific evidence can establish that contaminated water caused a particular person's cancer.
That question is part of a larger fight over expert testimony. Government attorneys are challenging the methodology used by some plaintiffs' experts, arguing that their testimony must meet the requirements of the federal rules governing scientific evidence before it can be used to establish causation. That issue could be critical to the upcoming trials. Boyle nevertheless indicated that he wants the litigation moving toward actual trials rather than continuing to wait for every issue to be resolved.
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The cases are part of thousands of lawsuits filed under the Camp Lejeune Justice Act. The law allows certain people who lived or worked at Camp Lejeune between 1953 and 1987 to seek damages from the federal government for illnesses they say were caused by exposure to contaminated drinking water.
At the hearing, the two sides also disagreed over how long the trials should take. Government attorneys estimated roughly two weeks for each case, citing the complexity of the scientific evidence and the number of expert witnesses involved. Plaintiffs' attorneys said the cases could be tried in two to three days.
Boyle signaled that he wants the proceedings tightly focused, describing the initial trials as a potential "dress rehearsal" for the much larger litigation. He said decisions from the initial cases could ultimately be appealed to the Fourth Circuit Court of Appeals, giving the appellate court an opportunity to weigh in on issues that could affect the remaining cases.
Boyle also considered two other cases — involving plaintiffs Tukes and Downs — that raise questions about whether the individuals were exposed to contaminated water during the periods they were at Camp Lejeune. Government attorneys argued those cases could have broader implications because of disputes over when contaminants reached particular wells at the base. Boyle did not set those cases for trial during the hearing.
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The judge also discussed the age of many Camp Lejeune claimants. The alleged exposure occurred decades ago, and some plaintiffs have died while their claims were pending and are now represented by their estates.
The government told the court that thousands of Camp Lejeune claims have already been resolved and that more than $1 billion has been offered through the government's elective-option settlement program. Those figures were presented by government attorneys during the hearing and were not findings by the judge.
But for the cases headed to trial, the central questions will be whether the plaintiffs were exposed to contaminated Camp Lejeune water and whether that exposure caused their illnesses.
For Mousser and Fancher, that means the court will be asked to weigh competing scientific evidence about kidney cancer — including a federal cancer-incidence study that found no statistically significant overall increase, and other ATSDR research that found associations between exposure to Camp Lejeune contaminants and kidney cancer.
The first trials could provide important judicial rulings on those scientific questions and help determine how thousands of other Camp Lejeune claims move forward.
